Sometimes it adds wings to the heels … sometimes it nails them to the ground.
—Montaigne, “On Fear”
Piedras Negras, Coahuila, Mexico
Fourteen men were slumped on mattresses and chairs, smoking inside the warehouse, watching over the migrants. One of the men had a pistol tucked into his waistband; another had a pistol resting on his lap. The men were fussing with their phones, ribbing each other, killing the morning. A slight waft of marijuana smoke lingered in the air. Someone hocked noisily, spat.
Arnovis, a thin, strong, hard-gazing twenty-four-year-old Salvadoran man, nonchalantly grabbed his black knockoff Puma backpack—the one his mother had bought for him back in Jiquilisco—wove through a maze of the sitting and slumped bodies, and walked out onto the patio.
Hey, vato, where you going? one of the men called.
Just to shower, Arnovis said. That okay?
And your backpack?
My clothes.
The shower was a five-gallon paint bucket filled with water, a plastic bowl floating on the surface. It was set next to the tall concrete wall. A few wires crisscrossed the sky above the patio. A couple of the fourteen coyotes—Arnovis had counted them—could see him through a large window. He grabbed the bucket and hauled it over to the door, where he plugged a coiled heating rod into an outlet, ran it back outside, and dropped it into the bucket. He stepped out again and, as the water began to warm, scanned the yard. The walls were about twelve feet high: definitely higher than he could jump. A branch of a mango tree growing on the other side of the wall dipped down far enough he thought he might be able to reach it. But he wasn’t sure if it would hold his weight.
That branch, he thought, my only hope.
Arnovis’s brother, living in a suburb of Kansas City, had wired money to the wrong coyote, a man named Gustavo. Well, his brother didn’t wire the money; his brother’s friend did. His brother doesn’t have papers, and couldn’t send money on his own, which may have been why there was the mix-up. Gustavo—the wrong coyote—got seven hundred for doing nothing, and he didn’t see any good reason to give it back. The problem—and for Arnovis it was a life-and-death problem—was that the family didn’t have any more money. After a deportation to El Salvador from Mexico a few weeks earlier, and a down payment on the six-thousand-dollar smuggling fee—the family sold a prized goat for three hundred bucks to help pay for the first trip—there was nothing left.
El Suri—the coyote who did not get the money—was the guy actually planning to take Arnovis across the border. The two of them had hit it off, joking around on the migrant trails; earlier, El Suri had even suggested Arnovis stay in Mexico and work with him. Arnovis got along with everyone. He liked to tell jokes to quell tension, and rarely complained—that is, he was just being himself, and wasn’t angling for a job in human smuggling. Maybe if it was just between El Suri and Arnovis they could have worked something out. But El Suri had a boss. The boss wanted his money.
~
As El Suri made a couple calls, Arnovis was hovering nervously. He remembers one call on speakerphone. Someone was trying to convince El Suri to head back south to take the next load. I’m waiting, El Suri said, for this one last kid to pay up. We’re trying to get his brother to wire us. The man on the other end of the line suggested El Suri chop off one of Arnovis’s fingers and send it to his brother.
Yeah, maybe.
El Suri hung up. Arnovis leaned up against the warehouse wall. He felt his future rushing at him like an oncoming train. A loud crescendo, and then—not boom but silence, death.
After another call, El Suri explained the situation: I got no problem with you, man. You’re only two hundred bucks to me. But the jefe, El Suri said, he doesn’t fuck around. He wants your money by ten tomorrow morning, and if you don’t have it by then, he’s going to come by, and what he’s going to do to you—he’s going to cut you into pieces.
Arnovis nodded, trying to take it in, trying to think. Trying to get out of the way of the train.
No money, and he was dead. That simple.
After a while El Suri called Arnovis’s brother again, trying to convince him to drum up the money.
If you don’t send three hundred dollars, we’re going to have to take care of your brother.
There were about seventy-five people crashed, sprawled and breathing on the open warehouse floor. Arnovis found an open spot and slumped down to try to think. After a while he tried calling his brother again, but couldn’t get through. Then he tried Gustavo, the coyote who pocketed the money for doing nothing. Surprisingly, he answered.
Gustavo! Arnovis explained the situation. It was all a mistake. He was going to be hacked into pieces if he didn’t pay his coyote tomorrow, and they had meant to wire El Suri, but had accidentally sent the money to him, so if he could just return the money …
I don’t have it, Gustavo said.
What do you mean you don’t have it?
I don’t have it.
The seven hundred dollars my brother wired you?
Yeah, don’t have it anymore. And, just a word of advice, Gustavo added, if they told you they were going to hack you into pieces, you better pay, or find a way to get out of there. And then he said something Arnovis already knew. These people don’t fuck around.
Arnovis went back to El Suri. He told him he’d work for him, do whatever he wanted. El Suri told him that was great. Terrific. He’d be glad to have him.
But, he still needed to pay.
He had twelve hours to figure a way out. That night was long, the floor hard and cold. Arnovis sat in a daze, hugging his knees, listening to the snores and moans of his fellow migrants crowding the open floor. It was like they were in a mass grave, but still alive. In his anguish, he still felt hope; he still rejected the fact that his final truth would come to him the next morning: that train, then silence.
In the morning, walking out to take a shower on the cold patio, where fourteen coyotes were smoking and checking their phones, he found his salvation: a branch.
If he could reach it, and if it didn’t break, he could pull himself up to the edge of the wall, grab on, and—maybe—get over. He didn’t know what was on the other side, but it was almost certainly better than what was on this side.
After plugging in the water heater and looking up at the mango branch for another moment, he walked over to it and jumped.
Back in Corral de Mulas, in the Usulután Department on the western coast of El Salvador, when he wasn’t plowing fields with oxen, laying bricks, mixing cement, harvesting corn, or working for a pittance at a sea turtle hatchery (for $180 a month), Arnovis would earn extra money climbing coconut trees. He’d kick off his sandals—if he was wearing any—wind an old rope around one wrist, toss it around the trunk of the palm, wind it around the other wrist, and shuttle up a forty-foot tree in a few seconds. He would then haul up his machete, which he had tied to the far end of the rope. Amid the scratch of fronds, he’d straddle one of the green branches, tie up a bundle of coconuts, hack it off, and lower the bunch to the ground. Getting down from the tree was trickier than getting up. He’d wind the rope twice around his waist, loop it over the space where a thick frond grew out of the trunk, and lower himself. No belay devices, no locks, no pulleys; nothing but rope, palm, and his wicked grip. Back on the ground, if he was thirsty, he’d wedge a coconut onto a stump with his hand, whack and twist the shell off in a flurry of machete hacks, pinprick the white flesh with the tip of the blade, and throw his head back and guzzle.
With his squarish face, high forehead, and narrow eyes, his down-turned lips tend to spring into an almost goofy face-wide smile when you catch his eye. But when his gaze locks, as it does in photographs, his eyes burn with worry and resolve. He wears a flattop buzz cut and a thin mustache, and is trim, with strong arms and shoulders. He also has a light step and an antsy energy: if there’s work to be done, such as a bundle of coconuts to harvest, he’ll kick off his sandals and be up the tree in seconds.
Coconuts go for about twenty cents apiece in Corral de Mulas, so if you want to make any money you have to climb a lot of trees. Sometimes four or five family members would head out together, leaving the house as early as three in the morning with two oxen pulling a tottering cart along the beach, heading south. The men climbed for coconuts and the women gathered pink cashew fruits until the heat started burning through the trees. Sometimes they would see small planes cruising low over a nearby airfield cut out of the jungle, spitting out wrapped bundles without touching down, and then buzzing back into the sky. These were the kinds of things they would see, hear, and not say a word about. Ver, oír, callar: a common saying and survival strategy in the Northern Triangle of Central America.
The mango branch held. Arnovis reached up his other arm and clutched the next branch, planted his feet against the concrete wall. In another heave he had a hold on the top edge. He braced his feet, yanked himself up, and then swung a leg over the wall. That was when he heard one of the coyotes. What the fuck!
This fucking vato! another shrieked.
Arnovis looked down the other side of the wall and saw a few dozen kids in uniforms crossing the patio of an elementary school. The mango tree was too far for him to reach the trunk to shimmy down. There was nothing to do but fall twelve feet onto the hard concrete in his black hand-me-down dress shoes.
Arnovis didn’t hesitate. He didn’t have time. He didn’t even jump. He just let go.
Gimme Shelter
Who kindly sets a wanderer on his way
Does e’en as if he lit another’s lamp by his:
No less shines his, when he his friends hath lit.
—Ennius
The basic idea of asylum is simple. Someone comes to your door because they are in danger, because they are afraid. You open your door, and you share your roof. But within this simple idea lies a labyrinth constructed of different sorts of fear: some fear is grounded in immediate physical danger, some is diffused in general conditions of oppression; some is exaggerated, some completely imagined. Some fears are unrealized, some send you to your grave.
As a legal construct, asylum is less simple. According to the 1951 UN Refugee Convention, which set the original international standard for defining refugees and asylum seekers, an asylum seeker is someone who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Fear is the requisite for asylum, but the definition is based on a fear of a specific entity, the state—a fear of being persecuted by the state or its representatives. But the fear must be “well founded,” and many of today’s asylum seekers, especially those from Central America and Mexico (where, taken together, most people seeking asylum in the United States are from), are fleeing non-state persecutors. The single country from which most asylum seekers come to the United States in recent years has been China, though in 2018 Venezuela topped the list for the first time.
According to the United Nations High Commissioner for Refugees’ (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status, “in general, the applicant’s fear should be considered well founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him.”
The US Supreme Court also wrestled with the definition of well-founded fear after adopting the language of the Refugee Convention into law with the 1980 Refugee Act. During the oral argument for a 1987 case, Immigration and Naturalization Service v. Cardoza-Fonseca, in which a Nicaraguan woman who overstayed her visa appealed to the United States for asylum, attorney Dana Leigh Marks (now an immigration judge) suggested defining such fear according to the “reasonable person” standard: would a “reasonable person” in this same factual situation fear persecution upon return to their country? But the justices sought a more quantifiable criterion than reasonableness—they tried to pin down the quivering subjectivity of fear. In his majority opinion Justice John Paul Stevens wrote, “One can certainly have a well-founded fear of an event happening when there is less than a 50 percent chance of the occurrence taking place.”
Justice Harry Blackmun argued in a concurring opinion that “the very language of the term ‘well-founded fear’ demands a particular type of analysis—an examination of the subjective feelings of an applicant for asylum coupled with an inquiry into the objective nature of the articulated reasons for the fear.”
Justice Antonin Scalia tried throwing out a few examples, and here he and Marks, still in the oral argument, engage in some frightful repartee.
SCALIA: Let’s assume that the persecution in the country you’re talking about is very … it’s horrible persecution, it’s torture; it isn’t just incarceration … Now, suppose my chances of actually being subjected to that if I go back are one in a thousand. Would I have a well-founded fear of going back?
MARKS: It depends on whether it would be reasonable to have that fear in view of the small chance that something is going to happen.
SCALIA: I know it would, and what’s the answer?
MARKS: The answer is that the tryer of fact should look at the specific facts which you put forth to show the objective situation.
SCALIA: You see, I don’t know the answer to that. Is that a well-founded fear or not?
MARKS: One in a thousand, I’m sure it’s not.
In 1987 Marks was a thirty-two-year-old immigration attorney presenting her first case before the Supreme Court. Today she is an immigration judge and president emeritus of the National Association of Immigration Judges. When I spoke with her, in 2018, thirty-one years after she had argued Cardoza-Fonseca, she told me she had been heavily counseled to avoid any attempt at quantification, and that Scalia had “backed her into a numerical corner.” Justice Stevens finally settled on what has become an unofficial 10 percent standard: if an asylum applicant has at least a 10 percent chance of “being shot, tortured, or otherwise persecuted,” they meet the requirements for being eligible for protection.
What we are left with: to be well founded, fear should be “subjectively genuine and objectively reasonable,” and can be based on the one in ten probability of occurrence of persecution. Marks told me, however, that most judges and attorneys avoid the numerical standard, and that she personally sticks to defining fear as well founded if it is “subjectively genuine and objectively reasonable.”
The legal grappling with this complex structure of a feeling hasn’t exactly made matters more clear. And yet, when you feel it, nothing could be more lucid than fear—more all-consuming, more convincing, more instant.
It is an emotion relatively easy to invoke—a mere word or a glance, given the right context, can incite one of our most elemental, spine-straightening, snake-brain responses. And yet what many of us may have experienced in a movie theater, or perhaps while lost in an unfamiliar city at night, or in a moment of turbulence at thirty thousand feet—those fleeting moments that twang at the nervous system—pale next to the pervasive fear that does not pass when the curtain drops, you find your way, or the plane touches down. Fear—as it relates to asylum—is fear that remains, builds, and pushes you to flee. While Montaigne said that fear “dethrones our judgment,” fear also thrones our drive to self-protection: wings to the heels. Incommensurability, too, is perhaps part of the nature of fear. You can’t measure or weigh it—it is just there, pressing, breathless, total.
What we take to be fear, and fear responses, as neuroscientist Joseph LeDoux has shown, should really be broken up into unconscious responses to threats and conscious feelings of fear. According to LeDoux’s scholarship, the amygdala—a little almond-shaped neural mass in the bowels of the brain that is commonly associated with fear—is not the center of fear itself, but rather where the brain responds to threat stimulation. The amygdala, that is, triggers the chemical response (read: objectively reasonable), and the subsequent sensation is the feeling of fear processed by the conscious brain (read: subjectively genuine).
“You can never be wrong about your experience of fear,” LeDoux told me when we met to discuss his research. The fear an asylum seeker experienced might not be merited, but it’s not wrong. When someone is removed from the danger, LeDoux explained, it’s also tricky to ask them how they felt about their fear. The very act of remembering, or reconsolidation, in neuroscientific terms, is liable to alter the memory. In other words, memory is not so much a thing—a file or code—as it is an act, which is a singular and new experience in itself. In terms of asylum, a more logical approach for immigration judges would be to measure the threat instead of measuring the fear. A careful editor to the 1951 Convention might replace “well-founded fear” with “well-founded threat.”
But—in terms of asylum—fear cannot be considered only as it involves the individual. For example, if the solution to an individual’s fear is to offer refuge—a neighbor opening their home—what if whole crowds are afraid and in need of refuge? At some point, it’s no longer safe for the original householders or for those who previously found solace under the roof. Complications abound.
And yet if we recognize the complexity of those who are knocking on the door, we also need to scrutinize those who are behind the door, those who have the roof to offer. Why are we the ones inside rather than outside? Why do we get to decide who to open the door for, who to turn away—just because we have the key and the house title? How, and under what legitimacy, were we the ones who were able to raise the roof? How did we obtain the land on which to build the house? Who was living there before? What are we afraid of?
Politically, the modern concept of asylum—though rooted in ancient religious traditions of sanctuary and primordial codes of welcoming the stranger—was formed in a period of political statecrafting and Cold War geopolitical braggadocio. Today’s legal concepts of refugee and asylum laws are still based on definitions that were originally tightly circumscribed by anti-communist ideology.
Amid the postbellum shuffle and rethink, the asylum policies enshrined in the 1951 Refugee Convention only applied to Europeans who were forced to flee their homes by events occurring before January 1, 1951, though hundreds of thousands had been similarly uprooted and unroofed in Asia and Africa, and millions more would take wing in subsequent years. These geographical and temporal limitations were more about politics than about need or even capacity. As Matthew Gibney puts it, “No country knit together its definition of a refugee with escape from communism as tightly as the US. Before 1980, refugees from non-communist countries (with the sole exception of the Middle East) had no status under US law.” Accepting refugees and asylum seekers was a way for the United States to leak the communist bloc of its citizens and undermine their governments. Those fleeing the rest of the world were simply left in the cold.
Today, there are two paths by which someone can gain refugee status in the United States—as a refugee or an asylee. Refugees apply from their own country (or a temporary place of resettlement), which must be of “special humanitarian concern” to the State Department. There are numerical limits, per region, on the number of refugees admitted each year. The 2018 ceiling for refugees from all of Latin America and the Caribbean was 1,500 people. But that was the ceiling. The actual number of refugees granted protection from all of Latin American and the Caribbean in 2018 was less than 1,000. Overall, in the same year, 22,491 refugees were resettled in the United States, and that number took another nosedive in 2019, with the annual ceiling set at 18,000, the lowest ever. White House officials have also purportedly considered shutting down the program altogether. In 1980, the total number of refugee admissions into the United States—the majority from Vietnam, Cambodia, Laos, as well as the Soviet Union—was nearly 250,000.
Asylees, meanwhile, for which there are no numerical limits, apply once they are inside the United States or when they show up at a port of entry. As the ceiling for refugees collapses—and as other pathways to immigration are foreclosed—more and more people fleeing danger are showing up to the US border and asking for protection through the asylum process. In 2017, 331,700 people applied for asylum in the United States, which was almost twice as many as applied in 2015, and roughly six times as many as applied in 2010. Just under thirty thousand cases were decided, however, meaning the backlog of pending cases is rising sharply. Worldwide, there were 837,445 asylum seekers in 2010, according to the UNHCR. By 2018, that number topped 3.5 million.
Under the umbrella of asylum—it might help to imagine an actual umbrella here, buffeted by hard wind and drenching rain—there are three different types of protection: asylum status, withholding of removal, and protection against deportation afforded by the Convention Against Torture (CAT). All three categories hark back to the guiding principle of asylum: non-refoulement, or the guarantee to not return somebody to a place where their life would be in danger. The first two options are based on the 1951 Convention, with “withholding of removal” applying to people who have not met the one-year filing deadline, or don’t qualify for another reason, such as having been denied asylum previously or having committed a felony. The Convention Against Torture, meanwhile (signed by the United States in 1988, but not implemented into US law until a decade later) not only prohibits torture itself but prohibits the expulsion, or refoulement, of anybody where “there are substantial grounds for believing that he would be in danger of being subjected to torture.” Both withholding of removal and the CAT claims have a higher bar than that for asylum: you need to prove that it is more likely than not—more than a 50 percent chance—you are going to face death, persecution, or torture upon return. To be eligible for asylum status, that threshold, thanks to Scalia and Stevens, is set at a 10 percent chance of future persecution.
To lay bare the political nature of asylum protections: during the 1980s the United States took in Cubans and Nicaraguans (fleeing Communist governments that the US openly opposed) but summarily denied Haitians, Guatemalans, and Salvadorans (fleeing US-backed authoritarian governments). In 1987, Nicaraguans were granted asylum at a rate of 84 percent. Meanwhile, for both Salvadorans and Guatemalans the asylum approval rate throughout the 1980s hovered between 1 and 3 percent. A 1982 Immigration and Naturalization Service memorandum revealed the government’s flagrantly discriminatory interpretation of the 1980 Refugee Act and the 1951 Refugee Convention: “Different criteria sometimes may be applied to different nationalities … In some cases, different levels of proof are required of different asylum applicants.”
Asylum policy has remained both grimly discriminatory and starkly political. The United States denies almost 90 percent of Mexican claims, while granting nearly 90 percent of claims from Eritreans—a gaping and irreconcilable disparity. In part, the difference owes to the mutual economic dependency between the United States and Mexico; it would be a diplomatic sucker punch for the United States to openly acknowledge that Mexico either persecutes or cannot protect its own citizens, but it has no problem making that same assessment about Eritrea.
Although terrorism has replaced the Communist specter, it is still largely fear—the nation’s—that drives hard-line immigration, asylum, and refugee policies. We codify the nation’s fears into law, yet we delegitimize the fear of our neighbors, the fear of refugees and asylum seekers—many of whom are fleeing not abstract, future-oriented fear of possible demographic change, “replacement,” or improbable violence but actual, immediate, duck-for-cover, jackboots-kicking-at-your-door, roof-is-collapsing fear.
Corey Robin called fear “the most electric of emotions.” John Locke said it was “the strongest emotion which the mind is capable of feeling.” Montaigne recognized that we (and our reason) are fear’s subjects, and yet we also wield fear, politically, like a nightstick, and invoke it to bolt our doors or to batter them down.
After the 9/11 attacks, a common fear unified much of the country, serving as social cement, a reason to talk to a neighbor or stick a flag in your lawn. It also divided the country and led to the rounding up and imprisoning of thousands of Muslims, as well as dramatic changes in US immigration and asylum policy. We responded to our fear by invoking it in others. And it was largely fear, too, that led to a massive, multi-trillion-dollar flexing of hard power—the longest war in US history—which has killed and uprooted millions.
The marrow of civilization, Hobbes reasoned, is not mutual interest but rather mutual fear. We are frightened of each other, and so we draw each other close, establish rules of engagement: politics. You intuit the need to protect yourself, but you need to rationalize, or legislate, the need to protect your neighbor. In submitting our authority of self-protection to the state, we expect protection not only for ourselves, but for and with our compatriots. In other words, we are all safer if we are all safe.
But demarcating who is given room under the wing of the leviathan has been an ongoing controversy that has, in part, sparked conflict, conquest, and holocaust. It has also spurred the development of institutionalized state protections such as the Universal Declaration of Human Rights and the Refugee Convention that today—at least on paper—extend rights and protection to every single human being on the planet. Sovereignty needs steel and statecraft; the extension of rights and protections needs incubation and cultural shifts. According to the “contact hypothesis,” the best way to counteract prejudice—to diminish fear—between majority and minority groups, between residents and newcomers, is by integration and patience. Fear typically prompts the opposite of patience. As Corey Robin writes, “What makes fear such a source of political élan is either the memory or the expectation of political entropy.” Nothing signifies political entropy more than—you can almost hear an Ennio Morricone theme—a stranger coming to town.
Two countervailing fears leave asylum seekers outside any state protections: the instigating fear that pushes people to flee their country, and the receiving population’s fear that propels them to slam the door. What results is a global crisis of homelessness: millions of people left in the cold of statelessness. To be stateless, as Hannah Arendt cogently observed, is to be rightless. Since the origins of human rights in the late eighteenth century, laws and protections have been hitched closely to the state. That is, if you fall or are pushed out from under its wing, you fall into a political abyss.
In 1845 Frederick Douglass, after escaping slavery in Maryland, wrote that he “imagined watchmen everywhere. At every ferry a guard. On every bridge a sentinel. And in every wood a patrol of slavehunters.” He captured the plight of the fugitive slave, in
a land given up to be a hunting ground for slaveholders. Where he is every moment subjected to the terrible liability of being seized upon by his fellow-men, as the hideous crocodile seizes upon his prey!—I say, let him place himself in my situation—without home or friends—without money or credit—wanting shelter, and no one to give it—wanting bread, and no money to buy it,—and at the same time let him feel that he is pursued by merciless men-hunters, and in total darkness as to what to do, where to go, or where to stay.
Douglass’s history is different, but his fear is similar and context relevant to that suffered by many migrants and refugees—hunted in one state and denied protections from another—dodging the watchmen, men-hunters, and border guards of today.